CA,M&DRP Questions Flashcards
What is a dispute resolution?
Actions and processes taken to resolve contractual disagreements between parties.
Name some different forms of Alternative Dispute Resolution?
Mediation, conciliation, negotiation.
Name some formal methods of dispute resolution?
Arbitration, litigation, adjudication.
What would you consider before selecting a form of dispute resolution?
The cost of the dispute resolution in proportion to the claim, timescales, impact on business relationships and reputation.
What is conciliation?
Similar to mediation, relies on in depended third party to aid reaching the agreement - role to act as messenger and encourage diplomacy.
What is mediation?
Relies on bringing in an impartial third party to mediate and guide a decision. encourage a coming together of parties in order to facilitate a decision as opposed to acting only as a messenger which is the key differentiator between mediation and conciliation.
What is negotiation?
Negotiation is where the parties reach an agreement through an informal private or facilitated discussion.
What could indicate the success of a negotiation on a final account?
Both parties are satisfied with the outcome and feel that a fair and reasonable compromise was reached. A partnering approach is adopted with both parties feeling as though their long-term relationships and reputations have been maintained.
What is adjudication?
Adjudication is a statutory form of dispute resolution procedure available in the United Kingdom. It is a relatively simple and efficient method of resolving disputes without engaging in lengthy and expensive court proceedings. Relies on an independent third party who considers the claims of both parties. A binding decision is made by the adjudicator which can be appealed either through litigation or arbitration. It has the advantage of being time sensitive with a decision being made within 28 days.
What enforces the requirement for a building contract to contain provisions for adjudication?
The Housing grants, Construction and Regeneration Act 1996 (Construction Act).
Which contracts does adjudication apply to?
It applies to all construction contracts entered into after the act commenced within England, Scotland and Wales.
What if a building contract does not contain provisions for adjudication?
Parties still have the statutory right to adjudication assuming the contract qualifies under the construction act. Failing this the Scheme for construction contracts will apply in its entirety
Please explain your understanding of the arbitration process?
Arbitration is a procedure for the resolution of disputes which is under the control of the parties. Certain conditions must be met for example a genuine dispute or difference between the parties must have occurred with an award being capable of enforcement. A binding agreement must be reached to escalate the matter to arbitration. The proceedings are undertaken in a private setting meaning the reputations of both parties can be preserved to an extent.
Can you explain in detail the difference between arbitration and litigation procedures?
Arbitration - Governed by the Arbitration Act 1996, both parties must agree to enter arbitration, formal submission by both parties, conducted in private.
Litigation - Proceedings conducted in court, public process that follows civil procedure rules, high cost process.
What RICS guidance can be referred to for conflict avoidance and dispute resolution?
RICS Practice Information on Conflict avoidance and dispute resolution.
